Bayit Yehudi bill would allow Knesset to reverse High Court cancellation of bills

MK Shaked motivated by High Court annulling government's migrant policy; Meretz proposes legislation making such reversals practically impossible.

October 21, 2014 15:04
2 minute read.
Ayelet Shaked

Ayelet Shaked . (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)


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Bayit Yehudi and Meretz are bringing their opposing views on the role of the High Court of Justice to the Knesset: A bill by MK Ayelet Shaked (Bayit Yehudi) that would allow MKs to reverse the court’s cancellation of a given law is expected to go to the Ministerial Committee for Legislation on Sunday.

Shaked’s legislation adds what is known as an overriding clause to Basic Law: Human Dignity and Liberty.

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Since the High Court can use the Basic Law as grounds for canceling other laws the Knesset has passed, the Bayit Yehudi MK’s bill allows for annulled laws to go back to the legislature, which can vote to re-pass it for a period of four years if 61 lawmakers support it.

In 1994, former prime minister Yitzhak Rabin’s government added a similar overriding clause to Basic Law: Freedom of Occupation to prevent the import of non-kosher meat.

“In a democratic, constitutional framework, the court has the authority to identify laws that deviate from constitutional principles and declare them canceled, thus preventing... a happenstance majority in the legislature from harming basic values of society,” the bill’s explanatory portion reads. “At the same time, sometimes there is an argument over values between the High Court’s justices and publicly elected officials on the appropriate balance...

and it is appropriate to give the legislative branch the option of passing a specific law despite judicial criticism.”

Shaked said she had been motivated to submit the bill after the High Court canceled the government’s policy toward illegal migration last month for the second time in a year, requiring the Knesset to scramble to pass a new version by the end of December.

“Even [Supreme Court] President [Asher] Grunis said the court went too far and turned itself into a legislator. No one says the court has to have the last word. The current situation harms checks and balances,” she told Army Radio on Tuesday.

The Bayit Yehudi faction chairwoman also pointed out that Canada and the UK had similar laws that “give the legislator the last word on whether a law is canceled.”

She predicted that the Ministerial Committee on Legislation would approve the bill, but that the Justice Ministry would appeal the decision and that it would have to be brought to another ministerial vote.

Meretz leader Zehava Gal- On also said the bill had a good chance of passing, because of “the tyranny of the majority.” She argued that it would cause endless problems.

In response to the legislation, Meretz plans to submit a bill that will increase the number of MKs necessary to overturn the court’s cancellation of a law to a practically impossible 90, which Gal-On says will ensure that it will only occur when necessary and not because of a political agenda.

Shaked’s bill “severely harms Basic Law: Human Dignity and Liberty and is a result of the ugly populist wave opposing the High Court, [a wave] led by Interior Minister Gideon Sa’ar and Prime Minister Benjamin Netanyahu, who are lending a hand to weakening the court,” Gal-On stated.

According to the Meretz leader, the High Court’s ruling to close the Holot holding facility for migrants proves that the court is defending the country’s morality and democracy.

“Political attacks that seek to delegitimize the High Court because its rulings don’t match the political agenda of the ruling majority are dangerous and will severely damage separation of powers in Israel and defense of human rights,” she added.

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